Monday, March 31, 2014

Melissa del Bosque at the Texas Observer reported that, "Embattled Hidalgo County Sheriff Guadalupe 'Lupe' Treviño—one of the
border’s most powerful law enforcement officials, whose office has been
roiled with allegations of corruption—formally announced his resignation
Friday." Her article is filled with juicy tidbits so I won't excerpt it, just go read the whole thing.

And speaking of the Observer, congratulations to Emily DePrang for being named a finalist for a prestigious 2014 National Magazine Award for her series last year on Houston PD disciplinary practices related to on-duty shootings and beatings. Noted editor Dave Mann:

The National Magazine Awards, or Ellies, are considered the Pulitzer
Prizes of the magazine industry. This is the third Ellie nomination in
the Observer’s 60-year history, and the second in two years. The Observer’s Melissa del Bosque was a 2013 finalist in the reporting category.

Emily’s stories—“Crimes Unpunished” and “The Horror Every Day”—published in the July and September issues of the Observer,
were the result of eight months of reporting. The stories exposed that
the Houston Police Department rarely disciplines officers for misconduct
and abuse. Over a six-year period, officers who left crime scenes,
falsified reports, mauled suspects and shot unarmed citizens were
allowed to keep their jobs and are still patrolling the streets of the
nation’s fourth-largest city. Emily found that between 2007 and 2012,
Houston cops were involved in 550 shootings of people and animals. The
department deemed every one of those 550 shootings justified, including
the killing of a wheelchair-bound mentally ill double amputee who was
armed with only a ballpoint pen. Emily’s reporting was picked up by CNN, the Houston Chronicle and TheHuffington Post, among others.

Lance Lowry, president of the union representing TDCJ prison guards, issued a press release today suggesting that Gov. Rick Perry's decision that Texas won't comply with the federal Prison Rape Elimination Act (see related Grits coverage) will result in a loss of federal funding and open the state up to potential civil liability. Find the text below the jump:

Film this: Fort Worth PD adds body cams
Fort Worth PD has decided to buy 400 additional body cameras for its officers on top of 200 already in the field, reported the Star-Telegram. Though the police association has expressed concern about its members privacy and overreach by management, thus far that hasn't been an issue: "although the videos have led to some additional training for officers, so far none have resulted in formal discipline."

Dallas PD pays $1.1 million for roadside beating
The City of Dallas settled a lawsuit for $1.1 million after dashcam video contradicted officers' account of the arrest of a 62 year old man who was beaten and spent 15 months in the county jail, apparently on trumped up charges. See accounts from WFAA-TV, the Dallas Morning News, and the Dallas Observer.

Texas sues feds over guidelines re: hiring felons
The Houston Chronicle published an item about the state of Texas' lawsuit, filed late last year, contesting the federal Equal Employment Opportunity Commission's "new guidelines designed to give ex-offenders a chance to be considered for a job," arguing that "The EEOC urges employers to determine in each case whether the
disqualification is job-related and a business necessity, and to
consider such factors as the nature and gravity of the offense, how much
time has passed since the conviction and the time served and the type
of job that is being sought." The state of Texas argues:

that it doesn't need to perform the "individualized assessments" the EEOC "purports to require."

It also is asking the court to set
aside the EEOC's enforcement guidance and prohibit the agency from
giving any job applicants the right to sue the state of Texas over its
rules regarding arrest and conviction records.

It also is asking the court to set aside the EEOC's enforcement
guidance and prohibit the agency from giving any job applicants the
right to sue the state of Texas over its rules regarding arrest and
conviction records.

The EEOC didn't return requests for
comment for this column. But in its response to the lawsuit, the federal
agency noted that its guidance was simply guidance. It wasn't a rule
employers had to follow, nor does it have the force of law.

The federal agency also noted that
Texas, with its sweeping anti-felon policies, is failing to distinguish
between risky job candidates and ones who likely pose little risk.

Former Willacy County district attorney Juan Angel Guerra was
arrested in court on Wednesday and taken directly into custody after
refusing to testify before 404th state District Court Judge Elia
Cornejo-Lopez.

The arrest stems from Guerra’s continuing refusal to provide an
accounting of money he, or an organization called Buena Suerte Social
Services Inc., to which he has ties, received from Samuel Longoria.
Longoria owned properties at the Cameron County and Hidalgo County line
known as the “blue buildings,” the sites of lucrative gaming operations. ...

Assistant DA Matthew Kendall has maintained that Guerra is Buena
Suerte and that the organization was nothing more than a shell
corporation.

Former state rep faces forfeiture in bribery scandalFrom the Valley Morning Star: "The U.S. Attorney’s Office has given notice
that it intends to dispose of a quarter-million dollars forfeited by
ex-state representative Jim Solis, for his role in the racketeering and
bribery schemes." Solis is currently serving a 3 years 11 month federal prison term.Money laundering blame game
In this New York Times story, US officials blame Mexico for failing to prosecute money laundering, but the truth is banks and businesses on the American side are also culpable.

Friday, March 28, 2014

The federal Prison Rape Elimination Act was signed into law by President George W. Bush in 2003, but the rules governing its implementation were not completed until June 2012 and standards governing audits of state facilities weren't finalized until August 2013. Governor Rick Perry today sent a letter to US Attorney General Eric Holder, forwarded by a confidant to your correspondent, declaring Texas would not comply. Here's a notable excerpt:

Because PREA standards prohibit most cross-gender viewing, TDCJ would be compelled to deny female officers job assignments and promotion opportunities, simply based on their gender. A consultant referred to TDCJ by the PREA Resource Center absurdly suggested that TDCJ solve this problem by removing security camersas and obstructing lines of sight. That is ridiculous. Doing so would not only be a security risk for both prisoners and staff but also increase the likelihood of assaults taking place, defeating the intent of the law.

PREA also infringes on Texas' right to establish the state's own age of criminal responsibility. That age in Texas is 17. PREA, unlike the JJDP Act, which recognizes each state's age of full criminal responsibility, makes no allowances for differences among the states. PREA sight and sound separation standards would require Texas to separate 17-year old adult inmates from 18-year old adult inmates at substantial cost with no discernible benefit to the state or its inmates.

PREA standards also set specific staffing ratios for juvenile detention facilities different from the state's current rate. While this ratio may be ideal in some facilities, the decision of what constitutes appropriate staffing ratios should be left to each state and to those professionals with operational knowledge. One of Texas' 254 counties has said that compliance with this standard would require them to hire 30 more detention officers. That is an unacceptable cost for a small county with a limited budget. ...

PREA standards also mandate that by May 15, 2014, the governor of each state must certify, under threat of criminal penalties, that all facilities under the governor's control are compliant with PREA standards. Texas has approximately 297 facilities subject to PREA, including 164 lock-up facilities. PREA requires one-third of these facilities to be audited each year, yet no audit tool for lock-ups has even been developed. There is no way that I will certify compliance for facilities that have not even been audited. The compliance and certification deadline is further complicated by the fact that PREA requires states to conduct audits by PREA-certified auditors. There are only about 100 PREA-certified auditors nationwide, and the first of those were not certified until late 2013.

Even if the manifest problems with PREA standards I laid out above did not exist, I cannot and will not certify as true those things for which I do not have the facts.

Washington has taken an opportunity to help address a problem in our prisons and jails, but instead created a counterproductive and unnecessarily cumbersome and costly regulatory mess for the states.

I encourage the administration to change these standards and do so soon. Absent standards that acknowledge the operational realities in our prisons and jails, I will not sign your form and I will encourage my fellow governors to follow suit. In the meantime, Texas will continue the programs it has already implemented to reduce prison rapes.

A quick Google search finds little media coverage or other significant detail on how PREA is being implemented in other states, but here's an FAQ from the feds on PREA implementation. It's not clear to me how Perry gets to 297 facilities under his "operational control" given that TDCJ only operates 109 facilities and there are five secure, state-run juvenile lockups. Here's the definition from the FAQ of what facilities are under the Governor's "operational control":

The National PREA Standards state that “The Governor’s certification [of full compliance with the PREA standards] shall apply to all facilities in the State under the operational control of the State’s executive branch, including facilities operated by private entities on behalf of the State’s executive branch.” 28 C.F.R. § 115.501(b). A “facility” is defined as “a place, institution, building (or part thereof), set of buildings, structure, or an area (whether or not enclosing a building or set of buildings) that is used by an agency for the confinement of individuals.” Id. at § 115.5. Some standards apply specifically at the facility level, while others apply at the agency level.

The definition of facility includes local detention and correctional facilities as well as State correctional facilities; however, not all facilities within a State are subject to the Governor’s certification. The Governor’s certification does not encompass those facilities outside the operational control of the governor; namely, those facilities that are under the operational control of counties, cities, or other municipalities, or privately-operated facilities not operated on behalf of the State’s executive branch.

The term “operational control” is not defined in the National PREA
Standards. The determination of whether a facility is under the
operational control of the executive branch is left to a governor’s
discretion, subject to the following guidance.

Generally, there are several factors that may be taken into consideration in determining whether a facility is under the “operational control” of the executive branch:

Does the executive branch have the ability to mandate PREA compliance without judicial intervention?

Is the State a unified correctional system?

Does the State agency contract with a facility to confine inmates/residents on behalf of the State agency, other than inmates being temporarily held for transfer to, or release from, a State facility?

The above list is not exhaustive but it covers the majority of the situations that Governors may face in determining whether a facility or contractual arrangement is subject to the Governor’s certification.

By that definition, it doesn't sound to me like Perry must certify that county-run juvenile detention facilities or local jails comply with PREA standards. Texas doesn't have a "unified correctional system" under gubernatorial control that extends to those local facilities. Further, PREA standards specifically do not "apply to adult psychiatric forensic mental health care facilities or hospitals operated by non-correctional agencies," though they "do apply to residential community confinement facilities such as halfway houses operated by community corrections agencies." Even so, I'm still not sure how that gets you to 297.According to the FAQ, the certification Perry is talking about would affirm that "not less than five percent of its
DOJ funding for prison purposes shall be used only for the purpose of
enabling the state to adopt and achieve full compliance with the PREA
Standards." Perry, though, appears to be saying he will not make such a commitment even though, as the program ramps up, the rule specifically provides that the Governor can make the required assurances "even if the agency has not pursued or completed audits."

For the life of me, I can't tell to what the letter is referring when Perry says governors must submit certification under "threat of criminal penalties." Judging from the FAQ, the penalty for noncompliance appears to be a 5% cut in three federal grant funds administered by the Governor's office, specifically "(1) the Bureau of Justice Assistance’s Edward Byrne Memorial Justice Assistance Grant Formula Program, and (2) the Office of Juvenile Justice and Delinquency Prevention’s Juvenile Justice and Delinquency Prevention Act Formula Grant Program." The third block grant to be cut is "administered by the Office on Violence Against Women: the STOP (Services, Training, Officers, and Prosecutors) Violence Against Women Formula Grant Program."

Finally, the new PREA standards provide another argument for the state to increase the age of criminal responsibility from 17 to 18, as the House Criminal Jurisprudence Committee was discussing earlier this week. Again, from the FAQ:

The Youthful Inmate standard requiring separation of those under age 18 from those over 18 is “setting specific,” applicable only in prisons, jails, and lockups. Even where state law provides for automatic prosecution in adult court of individuals at age 16 (e.g., NC, NY) and age 17 (e.g., GA, NH, IL, LA, MD, MA, MI, SC, TX, WI) when those persons are detained or confined in an adult prison, jail, or lockup, such individuals must be sight and sound separated from those over the age of 18.

This is another example of how Texas' outlier status regarding the age of criminal culpability creates ongoing conflicts with federal law.

Notably, however, the "sight and sound" standards about which the governor complained do not apply to juvenile facilities: "The PREA standards do not provide for any sight and sound separation of residents in juvenile facilities either because of age or court of conviction. Neither the standard on youthful inmates (115.14) nor the standard for youthful detainees (115.114) is applicable in juvenile facilities."

It'll be interesting to see how all this plays out in the coming months. Since Perry is leaving office after the end of the year, he really has no dog in the fight when it comes to foregoing federal grant money since he won't be around anymore to preside over its distribution.

Grits has filed an open records request for any report and/or correspondence from the consultant referenced in the Governor's letter, so perhaps that will reveal more about the supposed barriers to Texas' compliance with the federal Prison Rape Elimination Act.

CLARIFICATION: The DOJ has issued standards for county jails and local juvenile lockups but governors are only required to issue certifications for facilities under "operational control" of the state's executive branch, which in Texas does not include either category. Language in the post was adjusted to make that clear. MORE: See a detailed analysis of PREA implementation, including the lack of meaningful enforcement mechanisms, from Prison Legal News.

A Travis County judge has ruled that private prison firms are subject to the Texas Public Information Act. See Techdirt and the Courthouse News Service for more details. Congrats to Prison Legal News and the Texas Civil Rights Project on an important legal victory. See a related press release and the motion for summary judgment. UPDATE: Here's the judge's one-page ruling in the case. Thanks to a commenter for sending it along.

Thursday, March 27, 2014

Most of what little press coverage there was of Tuesday's Senate Criminal Justice Committee hearing exercising oversight of the Texas Juvenile Justice Department focused on Chairman John Whitmire's pronouncement that the agency is "broken." Reported AP, “Juvenile judges have told me they’ve given up on this department,”
Whitmire said. “They feel like they get better services for the youth in
the communities they are coming from.” The thing is, Whitmire has made the same pronouncement so many times in the past, there's an extent to which it's lost its edge. We've long ago learned there's no short-term fix to the agency's ongoing woes and, as retiring executive director Mike Griffiths told the committee, the agency will need time and long-term stability of leadership to truly fix what ails it. (Go here to watch the hearing for yourself.)

To me, the more interesting development on Tuesday concerned the committee's squelching of yet another rural county's ploy to use incarceration - in this case, of juveniles - as an economic development gambit. In 2007, the Texas Youth Commission operated 14 secure juvenile detention facilities. Today they're down to five. The ones that remain are large facilities with antiquated layouts not conducive to what nearly everybody recognizes as modern best practices: Smaller facilities aimed at providing rehabilitation and education services as opposed to mere incarceration.Local
officials spent $700,000 rehabbing the old Crockett State School
facility as a detention center, Crockett Mayor Wayne Mask told the committee. He expressly disagreed with the assertion by Whitmire, Sen. Juan Hinojosa, and others that prisons shouldn't be thought of as "economic development," declaring that in the "real world" that's exactly how local communities viewed them.

When the Crockett State School closed its doors in 2011, said Mask, the town lost one of its largest employers that had provided upwards of 300 jobs. The facility doesn’t lend itself to many kinds of businesses, he said, so they decided to turn it into a regional juvenile detention center to house delinquent youth from surrounding counties, contracting with a private prison company called Cornerstone to manage operations. The company held a recent job fair seeking applications for 40 positions and 400 people showed up hoping to fill them, said the mayor. But the economics of the deal won't work, the committee was told, unless Cornerstone can count on at least 70 youth detainees from the Texas Juvenile Justice Department.

Chairman Whitmire and the rest of the committee put an end to those hopes on Tuesday, telling local officials and their legislator-representatives that the agency had not given Cornerstone any letter of intent or other official confirmation and, with 400 empty beds at state-owned facilities, would not be authorized to do so. Local media had already portrayed Crockett's reopening as a done deal, so this was quite a slap in the face to the area's officials, who clearly jumped the gun. Whitmire and other senators said that, if the agency were to open new facilities, they would be smaller units in Texas' largest urban areas that contribute the most youth to TJJD's secure facilities - most likely in Houston, Dallas, and San Antonio. The chairman compared Crockett's situation to Jones County, which built a speculative prison and contracted with a private firm hoping to secure adult TDCJ inmates to fill it. The project went bust when the inmates never materialized.Outgoing executive director Mike Griffiths spent much of the hearing being berated for mismanagement, in particular for the supposedly high cost ($129K per student per year) of incarcerating TJJD youth. To me, though, the cost issue is a bit of a red herring. First, youth inmates inherently cost more than adults to incarcerate because by law (and federal court mandates) the state must provide educational and treatment services that for the most part don't exist in the adult system. Moreover, in the wake of the 2007 sex scandals, the Lege installed numerous layers of oversight that must be staffed on the administrative side. Griffiths listed several of them: An auditor, the ombudsman, an inspector general, an administrative
investigation division, a youth complaint hotline (euphemistically known as "blue
phones"), a monitoring and inspection division, and youth rights specialists, among others. Couple that with 12-1 staffing ratios (quadruple that of county jails) and the agency's educational mission and it's little wonder TJJD has disproportionately more admin staff and higher costs the Texas Department of Criminal Justice pays to house adults.The three year recidivism rate for TJJD inmates is higher than on the adult side, with 77% rearrested within three years of release and 48% re-incarcerated in either the juvenile or adult systems. OTOH, Griffiths pointed out, the three-year rearrest rate for similar classes of youth kept at the county level is 67%, so not that much lower. And it's possible the TJJD cohort represents, overall, a higher risk group of offenders than those who stay with the counties.Griffiths also took a lot of crap for not having yet eliminated all staff positions at the Corsicana unit even though the last of the youth moved out of there in December. His reasoning, though, to me seemed sound. The
agency was told in a budget rider to close a facility and chose
Corsicana. But it cannot finalize that decision until it gets the go-ahead from the Legislative Budget Board, where the House and Senate have been
unable to reach an agreement. (Speaker Joe Straus and others have voiced
support for keeping the unit open.) Most of the staff positions at Corsicana have already been eliminated. Some of those remaining are trainers - the agency still conducts training in Corsicana for staff from around the state in conjunction with Navarro Junior College. Some are maintenance staff, some work for human resources, and five are JCOs who continue to provide security. (Until LBB pulls the trigger, it's still technically a secure facility.) Griffiths said as soon as LBB made its decision, those last 25 positions would be eliminated or moved to other locales. Until then, he didn't feel he had authority under the rider to shutter it outright.The most damning indictment of TJJD came not on the financial side but as it relates to security, in particular at the Evins unit in South Texas which was the subject of a truly awful report by the Ombudsman after a December site visit. Grits asked for a copy of the Evins report under open records. I've uploaded the whole thing, for those interested, but here are some lowlights I pulled from the 8-page text:

"The culture on campus degraded." Many incidents were observed including a youth that took food off a staff's tray and staff did not react until I inquired; when staff reacted, the youth continued to eat part of the food he took; the same youth held up movement by refusing to leave the cafe."

"Numerous youths, and one in particular, cursed loudly at staff and visitors repeatedly. Few staff attempted to intervene and that consisted of only asking the youth to quiet down and identifying the visitors to the youth. Youths threw food and created a mess in the cafe by emptying food tray(s) onto the table and floor and completely disregarded staffs' instructions."

"Discussion with staff included that the facility was staffed at approximately sixty seven percent resulting in staff having to work consecutive shifts and being 'burned out' or tired."

"There were several additional incidents of staffs requesting cells be opened with multiple youths around the cells and staff walking away once the cells were opened leaving the youths unsupervised and allowing the youths to fight inside the cells. JCO VI on count was in the office performing administrative functions instead of supervising youths and the other JCO went off the pod creating the opportunity for four youths to assault another youth; male JCO left a cell door open and two youths went in to the open cell and fought, and a female JCO left a cell door open and did not supervise the youths. This resulted in two youths fighting in the cell."

"Some JCO staff reported that some staff had been known to minimize inappropriate staff behavior in reports. ... discussion with some facility management confirmed the allegation."

"Numerous youth complained about a lack of hygiene and clothing items. Discusssion with staff reflected that there had been some shortage and that one dorm lost both the JCO V and VI" (which are supervisory positions).

"A review of all eleven grievances entered this [fiscal] year reflects a lack of video review" by management.

"Educational services are suffering from a lack of teachers and teacher's assistants (TA), teachers' refusal to stay at work past 4:30 despite being exempt employees, and allegations that teacher's aides are performing full teacher functions without being supervised by certified teachers (according to some of the educational staff)."

"Numerous youths and staff complained that some of the teachers are not conducting classroom management except to refer youths to Security. Some of the instances noted were referral for cursing, not being in the right place because the youth was by the door, and not working." According to school staff meeting minutes, the Principal believed "there have been too many referrals to security which are minor and no interventions are being provided. Everyone needs to start utilizing the focus room and any other intervention possible before sending a student to the Security Unit."

The staff involved in leaving cell doors open so youth could fight were fired and some are being prosecuted, the committee was told. Still, the Evins report represents far more serious concerns, to me, than any of the financial critiques. The Ombudsman told the committee that some of the problems occurred because senior managers had been moved to other facilities and their replacements weren't up to snuff. TJJD has moved more experienced people into those positions since the report and she thought that had improved matters, though the problems weren't yet completely fixed.It should be noted, Evins has long been a problem child for the agency and these sorts of allegations are not new there. For whatever reason, in the time I've observed the agency and its predecessor, it's never been run as professionally as the other four remaining TJJD units.Several senators, most prominently Sen. Dan Patrick, expressed concern that TJJD classification procedures weren't sufficient to keep very young inmates away from older, more dangerous ones. Patrick
was concerned that the sort of bullying of staff by older inmates
witnessed by the Ombudsman at Evins might also be victimizing younger
inmates. He seemed passionate about the question and it was a fair point.

By statute, youth can't be housed with others who are more than three years apart in age, but there are moments during the day when they may still come into contact, particularly in educational settings where older youth may be in classrooms just a few doors down from younger ones, the committee was told. That's partly a function of moving from 14 to five units in a short span of time, cramming inmates of varying ages into just a handful of units. The 80% reduction in inmate numbers helped the problem somewhat, but it would be easier to segregate the youngest ones if TJJD operated smaller, regional units instead of larger, rural ones.

Regrettably, Griffiths told the committee, there are still counties sending 10-11 year olds to TJJD despite the 2007 reforms creating disincentives to do so. One thought occurred to me: Perhaps that's a good argument for increasing the minimum age at which counties can send youth to secure state lockups from the current 10 years old to, say, 13 or 14. Most counties already are dealing with those very young offenders on their own and it wouldn't be a great burden to just make it a requirement instead of a strong suggestion that the rest of them do so.In all, my takeaway from the hearing was somewhat different from the Chairman's pessimistic conclusion that the agency is inherently "broken." The whole thing made me think back to the "blue ribbon panel" created in 2007 to make recommendations (pdf) on TYC reforms. From Tuesday's hearing, it sounds like where the Lege followed that panel's recommendations - such as keeping more juvenile offenders at the county level and reducing both the number of secure state facilities and the number of youth housed there - the reforms have been a success. The problems haven't all gone away but the oversight mechanisms seem to be catching more of them and staff are being held accountable to a greater extent than in the past. By contrast, where the Lege failed to follow the blue ribbon panel's recommendations - e.g., continuing to house youth inmates at larger, antiquated facilities instead of moving to smaller, regional units closer to the urban areas from whence the youth mainly come - significant problems remain.Making some of those still-needed changes will likely cost more money, not less, so focusing on minimizing per-inmate cost in the short run probably isn't helpful. Anyway, the reforms keeping more offenders at the county level have coincided with a sustained drop in juvenile crime. So even if per-inmate costs are higher, overall costs to the state both for incarceration and from the cost of crime itself to the public are markedly less. In the end, the success or failure of the agency should be judged based on public safety, not cost-per-inmate, and on that score things look a lot better in 2014 than they did back in 2007, even if they still have a long way to go.

Wednesday, March 26, 2014

The Dallas PD instituted new guidelines for foot chases this week in the wake of the shooting death last year of an unarmed man, James Harper, who the officer (wrongly) believed was about to pull a gun. As Texas Monthly put it, the new policy:

addressed a number of the factors that led to Harper's death, including
when an officer should stop pursuing a suspect. Dallas Police are to
stop a pursuit if the officer loses his weapon or communications, or if
he loses sight of the suspect, or if the officer is too tired to
continue the chase. They're also to consider the alternatives to a
chase, such as an aerial search, using a swarm of officers to catch the
suspect, following by car, or using search dogs. And whenever possible,
they're encouraged to get an ID on the suspect immediately, to avoid the
need for a chase in the first place.

When multiple suspects flee, as happened in Harper's case, Assistant DPD Chief Michael Genovesi said "the police should
focus on just one suspect: 'Preferably the fatter guy.'"

Grits hasn't gotten a chance yet to watch yesterday's Texas House Criminal Jurisprudence Committee hearing on potentially raising the age at which youth are prosecuted as adults from 17 to 18, which would bring Texas in line with the feds and most other states. But here's the MSM coverage that I've seen so far:

According to the Statesman, "Only eight states, including Texas, automatically direct every
17-year-old into the adult criminal justice system, while two others
include 16-year-olds. In 40 states, adulthood begins at age 18." Notably, that number may soon rise to 41 as New Hampshire is considering changing it in their current legislative session, AP reported last week.

It's worth noting, as the Statesman report did, that "Even if the law were to consider 17-year-olds to be juveniles, the worst
offenders could still be certified as adults and tried in the adult
system." LBJ School instructor Michele Deitch told that committee that, "In Texas, any felony committed at age 15 and older
can lead to adult certification; the eligible age drops to 14 for
capital murder and other serious crimes." Further:

According to Deitch:

Teens in the adult criminal justice
system are 36 percent more likely to commit suicide and 34 percent more
likely to be rearrested for a felony than those who stayed in the
juvenile justice system.

Teens have needs that the adult system
is not designed to meet. Most are in high school, many were victims of
abuse and 70 percent of youth in custody have a mental illness.

In
2012, the vast majority of arrested 17-year-old Texans were charged
with misdemeanors and nonviolent crimes — theft, marijuana possession,
nonaggravated assault and disorderly conduct were the top four — at
rates that were little different from 16-year-olds.

I'm going to try to watch the lengthy hearing online soon and may have more to say on the subject after I've heard the whole thing. This was an "interim charge" given the committee by the Speaker of the House and the Lege won't consider legislation on the topic until 2015.

Let me know in the comments what you think are the potential benefits and drawbacks of changing the age at which youth are charged as adults.

Tuesday, March 25, 2014

Craig Malisow at the Houston Press has an article up on the Neal Hampton Robbins habeas corpus writ, describing the action at last week's oral arguments at the Court of Criminal Appeals. See related coverage here, here, here, here, here and, en Español, here.The more I think about how oral arguments went in that case, the more difficult it seems to guess where the CCA might land. Judge Larry Meyers, who wrote the majority opinion (pdf) the last time around, seemed isolated in his view that the Legislature had acted unconstitutionally when it passed Sen. John Whitmire's SB 344 creating a new cause of action for habeas corpus writs. Not a single, other judge who was there (Tom Price was absent due to illness) agreed with Meyers - even Sharon Keller, from whom I expected greater hostility to the new law. All but Meyers agreed the Legislature had created a legitimate, new ground for habeas relief. But judges were less convinced that legislative history supported the idea that the Lege intended the case to cover cases like Robbins. Your correspondent was quoted in Malisow's story arguing that they did:

[Robbins' attorney Brian] Wice maintains that the new statute was passed specifically with the
Robbins case in mind. Scott Henson, who writes the excellent criminal
justice blog Grits for Breakfast, and who has been following the Robbins appeals, agrees.

Henson tells us in an email that when the new statute was being
considered in 2011, legislators heard from the only opposition: the
Harris County District Attorney's Office.

"Their position previously had been that the law was unnecessary,
that the CCA would never sustain a conviction based on erroneous
science," Henson writes. "But [the 2011 Robbins decision], which came
out just after the 2011 session, proved they would (or at least five of
them would) and it's what made [the Harris County D.A.'s Office] back
off their opposition."

Indeed, the behind-the-scenes discussions about this bill with the Harris DA were principally about the Robbins decision. It was the main outlier that flew in the face of that office's position the prior two sessions. In light of Robbins, the Harris DA's Office agreed to back off their opposition in exchange for two changes: They wanted the standard for relief changed from it being "reasonably probable" that the jury wouldn't have convicted to saying an applicant must prove the jury wouldn't have convicted by a "preponderance of the evidence." And they insisted that the law say new evidence must "contradict" scientific testimony presented by the state at trial rather than merely "discredit" it. (See the text of the new statute, CCP 11.073, for yourself.)

In prior sessions, the Harris DA wouldn't even discuss the bill's details because they said "false testimony" was already ground for habeas relief based on a due process violation. Essentially, they agreed with Judge Elsa Alcala's dissenting opinion (pdf) in Robbins that "The fact that a witness acknowledges a mere possibility of an
alternative hypothesis is not a failsafe escape for due process
violations." Like Alcala, they'd suggested that "The Supreme Court has disallowed this technical splicing of the truth to
avoid due process violations. In evaluating whether evidence is false,
it has focused on whether the testimony, taken as a whole, gives the
jury a false impression." In Robbins, though, a bare majority disagreed, finding that the mere possibility of guilt was sufficient to uphold the conviction, even though Dr. Moore's opinion was "beyond a reasonable doubt, that she does not know the cause and manner of death," as Alcala put it. Once and for all it had been demonstrated that the CCA would not grant relief just because the state secured a conviction based on false scientific testimony.There were other cases, certainly, that demonstrated the court's confusion and the law's inadequacy with regard to how habeas law should handle junk science presented by the state at trial. As I wrote in 2013 legislative testimony in my role as Policy Director for the Innocence Project of Texas:

The issue [also] came up in Ex Parte Henderson (2012), [in which] five judges agreed to grant Cathy Lynn Henderson a new trial in a per curiam opinion, but no single interpretation of the law could gain more than four votes on the court, meaning at present there is no clear, agreed upon theory regarding how and why relief may be granted. Such division on the court speaks to a lack of clarity in the law and requires a legislative solution. Henderson is one of a series of recent cases in which a divided court struggled to overcome this glaring gap in Texas habeas law. Both Judge [Cathy] Cochran and dissenters in Henderson agreed that Texas’ current habeas corpus statute lacks clarity regarding how to react when critical scientific evidence supporting a conviction has been discredited. Judge Barbara Hervey, a dissenter who was a member of the Timothy Cole Advisory Panel [which recommended the change in the law], believes Texas habeas law at present simply provides no recourse for such defendants: “Something is missing here,” she wrote. “I cannot find a ground upon which relief should be granted.” Judge Cochran and four other judges thought the law was clear enough to grant a new trial. But she agreed that the “case does not fit neatly into our habeas statute or our actual-innocence jurisprudence.”

Whitmire's bill, my testimony argued, "fills the gap in habeas corpus law that Judge Hervey suggested needs filling, establishing a clear process and standard by which such cases will be evaluated and habeas relief granted." Whether or not Judge Meyers approves, the new law created a new ground for habeas relief separate and apart from the court's "actual innocence" and "false evidence" jurisprudence.Brian Wice told the CCA that "forensic experts are the new high priests of the courtroom" - a characterization that, while flamboyant, isn't far off the mark. And like any state-sanctioned religion, priests blessed with the imprimatur of government are more likely to be accepted by jurors than experts hired by the accused. A couple of judges on the bench noted that juries are more likely to view state's experts as objective and defense experts as mere hired guns, which is what prosecutors argued to discredit Robbins' expert witness at trial. That's why the new law allows relief if new evidence wasn't available to the defendant at the time (in this case, Dr. Patricia Moore's recantation) and "contradicts scientific evidence relied on by the state at trial." Even if contradicted by defense experts, jurors venerate forensic testimony put on by the government to a far greater extent, particularly when they have no sound basis to personally judge disagreements among dueling experts.I have no idea how the CCA will rule on Neal Robbins' latest writ. After the oral arguments, it would be difficult to count to five votes in either direction and Judge Price, a possible swing vote, wasn't there to participate in the discussion. But if the issue comes down to legislative history, they'd be ruling in error if the court decides the Robbins ruling played no role in pushing Whitmire's bill over the hump. From my perspective - and I was as closely involved as anybody - it wouldn't have passed if Judges Cochran and Alcala had prevailed in the court's 2011 Robbins decision.

Friday, March 21, 2014

On my to-do list this weekend is finishing Michael Hall's excellent story in Texas Monthly on the Lake Waco murders and the possibility that the men convicted of the crime - one of whom was executed - were actually innocent. Central to the convictions were statements from a jailhouse snitch and forensic testimony about bite marks, a discipline whose credibility in recent years has been seriously called into question. (At trial, jurors were told bite-mark evidence was as reliable as fingerprints.)

The missus left town for work on Wednesday and took the magazine with her for the plane ride, so I haven't yet finished the article. But TM has begun to serialize the lengthy piece on their website. Check it out. This is long-form journalism at its best.

Here are a few items that deserve Grits readers' attention but haven't made it into independent posts this week.

CCA debates new junk science writ
On Wednesday Grits attended oral arguments at the Texas Court of Criminal Appeals re: Ex Parte Robbins, the first case in which the high court considers how to interpret Texas' new junk science writ. Judge Larry Meyers thought the Legislature had overstepped its bounds
by passing a law that snubbed one of the court's past decisions, but the
rest seemed to accept the new statute on its face and instead debated
the merits. The crux of the issue: In Robbins, the state's expert later decided she was wrong after she gained more experience and learned more science, so the court struggled to determine if her new position "contradicts scientific evidence relied on by the
state at trial," which is the central issue under the newly minted CCP
11.073. (Your correspondent thinks it does, but I don't get a vote.) There were especially good questions from the bench - all eight judges present participated in the discussion - resulting in one of the more probative oral argument sessions I've ever witnessed at the CCA, though it was impossible (for me, anyway) to guess how the vote will come out. See initial MSM coverage here, here, here and, en Español, here.

Dead letters: CCA flexes its muscles
Here's the Texas District and County Attorneys Association's take on the CCA ruling striking down as unconstitutional a statute requiring that courts send notice to the Attorney General when they consider constitutional challenges (see earlier Grits coverage): "Whether one views §402.010 as an attempt by the Legislature to ensure
someone stands up for the validity of legislation in court or an attempt
by the AG to step into high-profile constitutional cases, it is clear
that in criminal cases, the section is a dead letter. Perhaps more
importantly, though, the Court of Criminal Appeals’ decision striking
down part of the online solicitation statute is essentially final." Speaking only for myself, I don't see how the statute can be resuscitated.

EFF: Give Texas credit for knowing a cell phone is not a pair of pants
Texas was one of the states lauded by the Electronic Frontier Foundation's Hanni Fakhoury in this column at JURIST titled "State courts stepping up on cell-phone privacy." Noted Fakhoury, "Common sense says a cell phone and a pair of pants are not the same thing and thankfully, the high court agreed." See Grits coverage of the case he's discussing.

TPPF: Too many youth incarcerated for 'status offenses'
Reported the Texas Tribune, "While the number of youths in confinement for noncriminal offenses has
dropped by 52 percent nationally in the past decade, thousands,
including many young Texans, remain in detention for minor misbehavior
like truancy and curfew violations, according to a report released this week by the Texas Public Policy Foundation, a conservative think tank." Though Texas has reduced incarceration rates, according to TPPF, the state "accounts for more than 15 percent of the confinements nationally,
with 1,300 juveniles being held in detention facilities for status
offenses, which are nonviolent misbehaviors, such as causing disruption
in schools, running away from home or consuming tobacco or alcohol."

States slashing incarceration rates
The Pew Charitable Trusts released this analysis noting that both incarceration rates and crime rates are declining. More than half of states reduced incarceration rates from 2007-2012, Pew noted.

Big banks and money laundering
In the wake of the arrest of the long-time chief of the Sinaloa drug cartel, NPR examined the role of mega-banks in laundering money from Mexican drug runners. The story portrays banks as "vulnerable," but Grits has long considered this dirty little secret as evidence of hypocrisy among America's drug warriors. If you really wanted to stop drug smuggling, the way to do it is to end the flow of capital, not to overrun courts and jails with low-level drug possession cases.

Wednesday, March 19, 2014

After Attorney General Greg Abbott asked the Court of Criminal Appeals to grant re-hearing on their 9-0 decision to invalidate Texas online solicitation of a minor statute as unconstitutional, the CCA today in another unanimous ruling not only told him "no" but expressly limited his authority, striking down a 2011 statute on which he based his post hoc intervention. Rather than reinvent the wheel, here's how Chuck Lindell at the Austin Statesman described this latest development:

The state’s highest criminal court Wednesday declined Attorney
General Greg Abbott’s request to reconsider an October ruling that
invalidated a law banning sexually explicit cyberchats between adults
and minors — and acted instead to limit the power of Abbott’s office.

Abbott
had argued that the court’s ruling on the “sexting law” was invalid
because his office hadn’t been notified, as required by state law, that
the statute had been challenged as unconstitutional. The oversight
deprived his office of an opportunity to defend the sexting law, Abbott
argued.

But in a unanimous, unsigned opinion released Wednesday,
the court threw out the notification law, saying it violated the
separation of powers between the legislative and judicial branches of
government as required by the Texas Constitution.

The Legislature exerted “undue interference” on courts when it enacted the law in 2011, the opinion said.

According
to the notification law, when a court finds a statute unconstitutional,
it cannot enter a final judgment until the attorney general is notified
and 45 days have passed.

Entering final judgments, however, is a
core judicial function that “falls within that realm of judicial
proceedings so vital to the efficient functioning of a court as to be
beyond legislative power,” the Court of Criminal Appeals ruled.

The 2011 law insisted that the AG be provided notice whenever the constitutionality of a law was challenged. A footnote to the main opinion striking down the notification provision held that the "directive to notify the attorney general of every constitutional
challenge to a state statute made by a party imposes a duty that is wholly unrelated to the Court's
judicial powers and functions. Pursuant to this unusual provision, the legislature would have this
Court exercise a function that is not only non-judicial but would operate solely for the apparent
benefit of the attorney general. And to what extent the attorney general would benefit from
receiving such a notice is elusive, given that the attorney general has no authority to appear in
criminal cases before this Court."

Ouch! That's gonna leave a mark.

Rubbing salt in the wound, Presiding Judge Sharon Keller offered a concurrence
pointing out that the AG's office has web access and should have known
about the case as it was happening just like every other attorney in the
state. Wrote Keller, "the notification statute applies not just to this
Court, but to all courts. I do not
know what burden the statute would place on trial courts and courts of
appeals, but, during the last
fiscal year, this Court disposed of well over nine thousand matters.
Many of the pleadings before
our Court claim that a statute violates the constitution. I agree with
the Court that subsection (a),
which requires courts to serve the Attorney General with notice and a
copy of the relevant pleadings
in all of these cases, also violates the Texas Constitution because it
imposes a duty that falls outside
of any judicial function of this Court."

MORE: From Mark Bennett, who argued the case before the CCA. In the comments to Mark's post, Alex Bunin from the Harris County Public Defender's Office noted wryly, "The State needs to stop filing stuff before something else they like gets struck down."

Tuesday, March 18, 2014

The Texas Court of Criminal Appeals will hear oral arguments tomorrow morning in Ex Parte Robbins, the court's first opportunity to decide how narrowly or broadly it will interpret the state's new junk science writ enshrined in statute by the Texas Legislature last year.The CCA heard the case once before and turned Neal Robbins down 5-4, but then the Lege passed the junk science writ, with testimony at
the hearings largely focused on the Robbins case; see this item from the Texas Bar Journal and my own written testimony to the Lege on behalf of the Innocence Project of Texas.

Edgar Walters at Texas Tribune has a brief preview of the case
in which your correspondent was quoted, though somewhat incompletely. I did tell Walters that "prosecutors
originally fought the bill — which failed both in 2009 and 2011 —
because they thought it was unnecessary," but he failed to add that it
was the CCA's ruling in exactly this case
that caused prosecutors to back off and agree to the bill's passage. The court's ruling in Ex Parte Robbins made clear the CCA
would allow convictions based on junk science to stand if the
Legislature didn't change the law. After Robbins, the Harris County DA's office (which had been the only significant opposition) acquiesced and helped negotiate the final language that's now in the statute. It would be ironic if Robbins did not now prevail, since this particular case was the one that pushed the bill over the finish line at the Lege.
This is the same new statute under which the San Antonio Four and Fran
and Dan Keller were released - they're now out on bail though the CCA
hasn't given final approval in those cases yet. Those junk science cases are considered more likely to be easily approved, while
the Robbins case - which involves an ME who gave erroneous testimony
and changed her opinion after she learned more science - is
considered the first test case that will provide an indication how the CCA will interpret the new writ.

See an amicus brief from the Innocence Project of Texas and prior, related Grits coverage:

Sunday, March 16, 2014

Here are several items related to policing tech that caught my eye today:

Speeding and Tweeting
Cops in Keller, TX are posting on Twitter and Facebook where and when they'll be doing traffic enforcement in hopes that people who know they'll be there will avoid speeding in the first place. Seems like a sensible plan.

Police body cams and privacy
Grits is generally a fan of police wearing body cams because it generates better evidence in criminal cases and provides a prophylactic against wrongdoing. But there are a handful of legitimate privacy issues cameras bring with them - toilet time, talking to confidential informants, etc. - that are discussed in this article and especially, in much more detail, in the comments. Not insurmountable, but the issues need to be discussed as this tech become more widespread.

Utah Lege: Require warrants for location data, content
Utah this month passed several notable pieces of electronic privacy legislation, including a bill "to obtain the location, transmitted data, or stored data of an
electronic device such as a mobile phone or laptop. The bill requires
law enforcement to delete any data they collect that doesn’t pertain to
the suspect named in the warrant. It also requires notification to the
individual that the location or data was obtained, much like a person is
served a copy of a traditional warrant when physical property is
searched or seized."

The FBI and signals intelligence
Don't just worry about the NSA invading your privacy, worry about the FBI. This article from Foreign Policy delves into the FBI's growing domestic signals intelligence capacity aimed at foreign embassies, but the same tech could be and is used in domestic criminal investigations.

The 'spy in your pocket'
Dave Lieber at the Dallas Morning News had a column last month about the nexus between government and commercial cell phone tracking. See also recent columns at Wired touting the benefits, or at least relevant benevolence, of the 21st century consumer surveillance society.

I spy with my little surveillance camera
Check out examples of concealed surveillance devices from the Middle East and Guantanamo Bay, the latter of which was used to listen in on conversations between prisoners and their defense counsel.

My old pal Forrest Wilder at the Texas Observer reported recently in breathless tones that Texas House Speaker Joe Straus is helping the American Legislative Exchange Council (ALEC) - which he dubbed an "embattled corporate-funded group that pairs lawmakers with special interests to write legislation in secret" - to fundraise in Texas.

Forrest worries that, "Straus is generally considered one of the few bulwarks in state
government against tea party excesses. Why would he join forces with
ALEC?"

On the other hand, lawmakers getting together with special interests and writing legislation in secret is hardly a new thing. At least when ALEC proposes legislation it eventually becomes a public strategy and everyone can agree or disagree on the bills themselves as they appear.

From my own perhaps-myopic perspective, Grits is rather pleased to see the Speaker's affiliation with ALEC because, during the 83rd session, Straus and his allies on the House Calendars Committee were the principal barrier to getting the lower chamber to vote on electronic-privacy legislation carried by sometimes-Straus critic Rep. Bryan Hughes. But lately, Hughes has been working with ALEC to create model electronic privacy legislation based in part on his Texas bill requiring police to obtain warrants for cell-phone location data as well as legislation that passed (amended to something else, not as an independent bill) requiring warrants for cloud-based email and other content.

Hughes' bill had more than one-hundred joint and co-authors, so if it had ever been granted a floor vote it would easily passed. (In fact, the bill was amended on the House floor on a 126-4 vote to a senate bill but the senate author, John Carona, who was ousted in the recent primary, used a parliamentary maneuver to pass a version that didn't include it.) Will a closer affiliation with ALEC help convince Joe Straus to embrace electronic privacy legislation instead of hinder it? I hope so. Certainly I'm not going to spend a lot of time fretting over the Speaker's very pragmatic decision to affiliate with them.

Saturday, March 15, 2014

The Texas Observer has a lengthy article by Robyn Ross on inmate funerals at the prison cemetery in Huntsville with the same title as this post. Here's a notable excerpt, but the whole thing is worth a read:

Of the roughly 450 inmates who die in Texas prisons
each year, about 100 are laid to rest in Captain Joe Byrd Cemetery.
Whether they die in one of the state’s 109 prison units, at the TDCJ
hospital in Galveston, or at the prison system’s hospice facility near
Palestine, the inmate’s family has the option to claim the body and make
funeral arrangements of their choice. When family members can’t be
located, or when they decline to claim the body, the state picks up the
tab for the funeral and buries the body in TDCJ’s Byrd Cemetery.

The most common reason families don’t claim the body is that they
can’t afford to, Chaplain Collier says. Some, like the family that
attended today’s visitation at Grace Baptist Church, will decline to
claim the body but then attend services in Huntsville. Prison funerals
are generally held on Thursdays, unless the deceased has been executed,
in which case the burial is often performed the following day; the
accelerated schedule saves families who come to witness the execution
from having to make a second trip to Huntsville. A typical Thursday may
have one or two funerals. Collier says he’s done as many as nine in one
day.

He estimates that 60 percent of the services he performs are directs.
Sometimes next of kin can’t be located. Other families can’t afford to
travel to Huntsville. “You’ve got some that may be in Amarillo, and to
come down here is too much,” Collier says. “And I buried one last week
that was 80-something years of age, and he probably outlived most of his
family.”

If no family or friends attend, the inmates of the cemetery grounds
crew stand witness in their stead. These “offenders,” as TDCJ calls
them, typically don’t know the deceased, unless the person died at the
Walls Unit.

“It’s humbling,” says Lawerence Lacour, 26, who digs graves and
serves as a pallbearer. He’s done other manual labor in the four years
he’s served on a drug-related sentence, but this is different.
“Especially as a Christian, in this situation I think that I could
myself die, because tomorrow’s not promised to anybody.”

Friday, March 14, 2014

Because of the snaking course of the Rio Grande, which marks the
international boundary with Mexico, the border fence was built on top of
the levee, in some places a mile or more from the river, marooning
thousands of acres of bucolic farmland, native habitat sanctuaries and
private landowners on its southern flank.

Today, there are roughly
56 miles of border fence and wall in the Rio Grande Valley alone, none
of which changed the underlying character of the land — what was
farmland before remains farmland today.

Yet, critics argue, the
fence not only disrupts communities and impedes residents’ ability to
move freely the nearer they are to the fence, it has also created a
“Constitution-free” region where Border Patrol enforcement faces less
oversight.

“What they’ve essentially created is a no-go zone,”
said Joseph Nevins, associate professor of geography and chairman of
earth science and geography at Vassar College, who studies the
U.S.-Mexico border and is familiar with the Rio Grande Valley. “The very
act of being in a particular place invites suspicion.”

At least
three times in recent years, witnesses reported that Border Patrol
agents shot and killed people along the Texas-Mexico line without
justification. One man in Matamoros was fatally shot from across the Rio
Grande in Brownsville in July 2012.

Late last week, the Border
Patrol directed its agents to limit their use of force in certain
situations [details here] after a recent report by independent law enforcement experts
criticized the Border Patrol for a policy that led to the killing of at
least 19 people.

For its part, the agency says agents are
authorized to search any vehicle between the fence and the river if they
have “reasonable suspicion” that unauthorized immigrants are aboard.

This is exactly the sort of dystopic scenario that made me oppose a border fence in the first place. As Grits wrote in 2008, "From the moment Congress first proposed putting a wall along the Rio
Grande on Texas' southern border to reduce illegal immigration, I
thought it was not just a bad idea but an insane one. As far as I can
tell, when it's finished the United States will be the first nation
state in the history of the planet to wall off a major river and leave the river on the other side!"

Border patrol officials insisted “it’s not a no man’s land” because “We are out there [and] … so are aliens and smugglers.” But to me, that's the definition of a "no man's land" - a place where the lack of legitimate public life breeds lawlessness, both by emboldening criminals and removing constitutional restraints from authorities. And because most illegal immigration happens at the checkpoints, the wall has done little to achieve the goal of reducing it. "More immigrants illegally enter the United States through the Border Patrol’s Rio Grande Valley Sector than any other," reported the McAllen Monitor last fall.

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